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The International Court and the United Nations: Reflections on the Period 1946–1954

Published online by Cambridge University Press:  22 May 2009

Shabtai Rosenne
Shabtai Rosenne
Affiliation:
Legal Adviser, Ministry for Foreign Affairs of Israel. The views expressed in this article are Mr. Rosenne's, and do not necessarily represent the opinions of the Ministry for Foreign Affairs.
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Extract

This article is devoted to a consideration of the role (during the period 1946–54) of the International Court of Justice within the general context of international institutions existing to facilitate the pacific settlement of international disputes. For the development of international judicial techniques, this period is dominated by a novel, and unwelcome, phenomenon, that of the non-implementation of several of the Court's decisions. In this respect the position of the Court, as a principal organ of the United Nations, is not unique, for, in all its work, the United Nations has had to face the problem of the non-implementation of the resolutions of the principal organs. In making the following observations, the possibility that a decision will be taken in 1955 to convene a General Review Conference, in accordance with Article 109, paragraph 3, of the Charter and Article 69 of the Statute is kept in mind. However, it is not our intention to put forward any specific suggestions for amending either Chapter XIV of the Charter or the Statute. Until a careful and comprehensive review has been made of the working of the provisions of the Charter relating to the Court, and of the Statute, it would be premature to do so.

Type
Articles
Information
International Organization , Volume 9 , Issue 2 , May 1955 , pp. 244 - 256
Copyright
Copyright © The IO Foundation 1955

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References

1 It may be pointed out that, whereas by Article 69 of the Statute, amendments to the Statute are effected by the same procedure as is provided by the Charter for amendments to the Charter, by Article 70 of the Statute, the Court itself is given power to propose such amendments as it may deem necessary. The Court's Rules of Procedure are silent on this aspect. Some proposals for amending the Statute are already under discussion in unofficial circles, notably in the Institut de Droit International which, in its Aix-en-Provence session (1954), adopted an important resolution thereon after having received a valuable and stimulating report prepared by Prof. Max Huber. A report by Mr. Schwarzenberger, submitted to the 46th (Edinburgh) Conference of the International Law Association held in 1954, also contains some interesting suggestions in this regard. The preliminary debate held in the eighth session of the General Assembly of the United Nations did not particularly refer to the problem of amending the Statute of the Court. On that debate, see Robinson, J., “The General Review Conference” in International Organization, VIII, p. 316Google Scholar.

2 This problem is discussed in an important article by Jully, Laurent, “Arbitration and Judicial Settlement—Recent Trends” in The American Journal of International Law, vol. 48 (1954), p. 380CrossRefGoogle Scholar. The Reports of International Arbitral Awards contain the texts of 17 arbitral awards given in the period 1923–1928, and 22 in the period 1933–1939.

3 Figures from Hudson, , The Permanent Court of International Justice, 1920–42 (New York, 1943), p. 779Google Scholar.

4 No orders were rendered prior to 1926.

5 Including the refusal to give an opinion in the Eastern Carelian case.

6 The Corfu Channel case is counted as one new case, although in the General List of the Court it appears as two cases.

7 Including the two orders of 12 July 1954 in the case of the Treatment in Hungary of Aircraft and Crew of U.S.A.

8 SeeRosenne, , “L'execution et la mise en vigueur des decisions de la Cour Internationale de Justice” in Revue generate de droit international public, vol. 57 (1953). P. 532Google Scholar.

9 Four states have so far availed themselves of this right—Switzerland, Liechtenstein, Japan and San Marino. Two non-member states—Albania and Italy—have been parties to litigation before the Court, in accordance with special arrangements made, and other non-member states have availed themselves of the opportunity to inform the Court of their views in advisory procedures affecting their interests.

10 Figures fromLeague of Nations, Official Journal, Special Supplement, No. 193 (1944), p. 37 ffGoogle Scholar. and the Yearbook of the International Court of Justice, 1953–54, p. 213.

11 In 1924 the Assembly and the Council of the League agreed to a suggestion that the Court submit an annual report. It was in response to this suggestion that the Annual Report was instituted in 1925. (SeeLeague of Nations, Official Journal (1925), p. 124Google Scholar and P.C.I.J., Series E, No. 1, p. 7). But the Yearbook (as it is now called) is not a report in the sense of Article 15 of the Charter, and it is not submitted to any other organ.

12 UNCIO, vol. 14, p. 828.

13 It may be pointed out that in the Security Council a simple majority, i.e. six votes, is required (despite the normal minimum majority of 7 votes in that organ), and in the General Assembly there is required an absolute majority of votes of members of the General Assembly plus non-members parties to the Statute. This is interpreted to mean an absolute majority of the states entitled to vote, and not of those present and voting—an interpretation which had a decisive result in the 1954 election.

14 See: Annuaire de I'Institut de Droit International, vol. 44, t. 2 (1952), p. 474.

15 Eleven judges and four deputy judges.

16 In this, and succeeding tables, the elections of 1948 are omitted, as all the retiring judges were re-elected, and no change, therefore, took place in the composition of the Court.

17 Figures since 1946 include the Soviet Union in Europe.

18 In 1951 an Indian judge was elected to the Court, representing both the common law and Asian law.

19 In 1951 a Pakistan judge was elected to replace the deceased Indian judge. He may be said to represent the common law, Asian law and Islamic law.

20 Note the decentralization of the British common law after the Statute of Westminster of 1931.

21 These words do not appear in the pre-1945 Statute. They were added by Committee IV/I at San Francisco with the object of accentuating the character of the Court as “an organ of international law”, 13 UNCIO, p. 381, at p. 392.

22 MrGlabbeke, Van in General Assembly Official Records (6th session), Sixth Committee, p. 61Google Scholar.

23 This principle is normally not fully operative in connection with advisory opinions, for the technical reason that the advisory opinion, as its name indicates, does not constitute a binding decision. Some of the advisory opinions requested and given since 1947 have not been successful in solving the political situations in connection with which they were requested. This is notably the case in connection with the references to the Court in the matter of the admission of new members (1948, 1950), and on the status of South-West Africa (1950). This experience suggests that, despite the technical peculiarities of the advisory procedure, its success also depends upon the extent to which political consent to have recourse to it exists. There is something unreal and frustrating about repeated recourse Court over the head of politically strong opposition.

24 From a note of n May 1922 from the Soviet Delegation at the Genoa Conference, quoted inCarr, , Bolshevik Revolution 1917–1923, vol. III (London, 1953), P. 378CrossRefGoogle Scholar. See also the Litvinoff statement Hague Conference on Russian Affairs a few months later, quoted inSohn, , Cases and Other Materials World Law (Brooklyn, 1950), p. 1046Google Scholar. Further indications of current Soviet views will be found inLapenna, , Conceptions Sovietiques de Droit International public (Paris, 1954). P. 297Google Scholar.